Same-sex couples have won some victories at the state and local level, most notably in Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)] which granted marriage rights in Massachusetts. However, there are 1138 federal rights granted to married heterosexual couples that are still unavailable to same-sex couples. In light of this fact, this author advocates repealing the federal Defense of Marriage Act (DOMA), and passing legislation at the federal level which would make it illegal to discriminate against homosexuals in the workplace.

Since the passage of the federal Defense of Marriage Act in 1996, same-sex couples have been excluded from federal benefits, even if their union is recognized by the state in which they live. This article advocates extending rights granted under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code to same-sex couples “where their respective states have legally recognized their relationship under civil marriage, civil union, or domestic partnership laws.”

Written as a guide for Colorado practitioners who represent gay, lesbian, bisexual or transgender clients, with workplace discrimination claims, this article presents legal strategies which may be used in support of such claims (not necessarily limited to Colorado). Strategies explored include gender non-conformance, Title VII retaliation, same-sex harassment, local non-discrimination ordinances, and wrongful discharge in violation of public policy. The article was presented by the Colorado Bar Association Labor and Employment Law Section.

An exploration of the history of discrimination against homosexuals, this article also warns of history’s nature of repeating itself. The author begins with discrimination against homosexuals in the Progressive Era (1886-1915), then shifts to the Cold War Era (1946-1961), in which homosexuals faced “unprecedented discrimination in the name of national security.” After laying the historical groundwork, the author demonstrates how all of the old arguments used to justify discrimination against homosexuals (particularly those of familial sanctity) have been revived. The author explains that we are witnessing this re-emergence of discrimination as a backlash in the wake of Lawrence v. Texas, and subsequent legal victories.

Arguing for a political (or social) solution to the issue of same-sex sexual harassment in the workplace, this author contends that courts are ill-equipped to understand the sexuality inherent in sexual harassment. Rather, the courts have gone out of their way to avoid arguments of sexuality, relying instead on a “false binarism.” The author argues that “the courts’ inability to adequately theorize sexuality precludes an equitable approach to adjudication of sexual harassment claims.” The article begins with a review of sexual harassment law and traces its progression over the past quarter-century.